By Donald Scarinci | October 18th, 2012 - 10:14am
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Many are predicting that provisional ballots could play a crucial role in the 2012 Presidential election, particularly in states with stricter voter identification requirements.

Provisional ballots are provided to voters when their eligibility cannot be verified at the polling location. Following the election fiasco of Bush v. Gore, a federal law was passed mandating that voters be given the option of casting a provisional ballot if they believe that they are entitled to vote in the election.

State law largely governs the provisional ballot voting process. Under New Jersey law, a voter may be asked to complete a provisional ballot in the following circumstances:

  1. The voter’s name is not in the poll book or his or her voter registration is deficient (e.g., the signature or address is missing).
  2. The voter moved outside of the election district of record, but within the county, and did not inform the county commissioner of registration prior to the election.
  3. The voter is classified as an “Active Need ID” or “Inactive Needs ID” and cannot provide proper identification at the polling place. In most cases, voters are flagged for verification because they did not provide proper ID at the time of registration.
  4. The voter is listed as applying for a mail-in ballot, but claims he or she never applied for, received, or returned a mail-in ballot.

In these situations, voters are given a paper ballot and an affirmation statement that must be signed at the polling location. Provisional ballots are not counted at the polling place, but are kept separately for later verification. If the County Board of Election is able to verify that the voter is registered and eligible under New Jersey election law, the voter's provisional ballot must be counted.

Although most provisional votes are validated and become legal votes, they are not without controversy. Earlier this month, a federal appeals court ruled that Ohio election officials must count provisional ballots cast in the wrong precinct but at the right polling place, as long as the error was attributable to poll workers. A law to the contrary had resulted in Ohio tossing out more than 14,000 wrong-precinct ballots in 2008 and 11,000 more in 2010, according to the Wall Street Journal.

“The State would disqualify thousands of right-place/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote,” the Sixth Circuit ruled.

Donald Scarinci is a managing partner at Lyndhurst, N.J.-based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government & Law blogs.

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